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Tuka Ram & Anr. v. State of Maharashtra

Tanya Arora & Roshni Kapur, Students, Amity Law School, Amity University, Noida

Introduction

This case is one of the most condemned judgments in the history of criminal law and it is believed that it resulted in grave miscarriage of justice. The case revolves around the custodial rape of a minor tribal girl named Mathura, wherein the accused were acquitted on the grounds that the sexual intercourse was consensual. The said judgment put its reliance on the previous sexual history of the victim and the medical examination, that led to the violation of the principles of natural justice and good conscience. The main issues dealt by the Supreme Court in this case revolved around determining the circumstances which led to the sexual intercourse between the victim and the accused and whether there was any consent on the behalf of Mathura.


Background

In this case, Mathura is an orphan, aged between 14-16 years, who stayed with her brother, Gama. She worked as a labourer at the house of Nushi, where she met her nephew Ashok and both of them developed an intimate relationship and decided to get married. On March 26, 1972, Gama filed a report in the police station that Mathura has been kidnapped by Nunshi, her husband Laxman, and Ashok. Based on the complaint filed, the accused, along with Mathura, were called to the police station at 9 pm where their statements were recorded. While they were leaving, appellant no. 1 Ganpat asked Mathura to stay back while asking the others to leave. Afterwards, the doors of the police station were locked, and the lights were switched off. Ganpath took her to the washroom and raped her, and then dragged her to the Chhapri and raped her again. After that appellant no. 2, Tuka Ram, attempted to rape her but couldn’t since he was heavily intoxicated and hence, fondled with her private parts. Mathura narrated the incident to Gama, Ashok and Nushi who were waiting outside for her. She was examined by Dr. Shastrakar on March 27, 1972, on whose advice a FIR was filed. The session judge acquitted the accused by basing their judgment on the sexual history of the accused and held the sexual intercourse consensual. The presence on semen on her clothes was deemed to be a result her having sexual intercourse with some other person other than the accused. The court also dismissed the evidence claiming that the victim was aged between the age of 14-16 years and stated that the accused could not be held liable even under Section 375(6) of the Indian Penal Code. This order was then reversed by the Bombay High Court, who found that the sexual intercourse was forced. They attributed attention to the fact that the accused were people of authority, held that resistance would be injurious to her and her brother. The court also considered that semen missing in the vagina could be due to delay in getting the medical examination.


Analysis

In 1979, an appeal was filed by the accused in the Supreme Court of India against the judgment given by the Bombay High Court. The said appeal was then accepted by the Apex Court and a decision was passed by the bench to reverse the order of the High Court, setting aside the order of conviction. Agreeing with the findings of the Session Judge, the Supreme Court deemed this to be a case of consensual sexual intercourse wherein the girl had put false allegations against the accused. The decision of the court was based on the premise that there was an absence of injury marks on Mathura’s body, which raised a question whether there was any resistance from Mathura’s side or not. The court contended that the said absence shows that no battle was put upon her part. It was further added that Mathura’s failure to shout to her companions and seek help or try and resist Ganpat’s attempt at dragging her to the latrine leads the court to believe that she consented to the sexual act. Additionally, the medical examination did not confirm Mathura’s story and showed that there was no rupture to the hymen or presence of semen on her pubic hair.


Thus, the court stated that based on the above-mentioned evidence and circumstances, Mathura’s consent cannot be taken as passive submission. According to Section 375 of the Indian Penal Code, the onus of proving the ingredients that constitute the crime of rape was on the prosecution, and in the said case, the prosecution had been unable to prove that her consent was obtained by causing the fear of death or hurt. In reference to her accusations against the accused Tukaram, Mathura went back on her allegations made against him in the First Information Report during the trial, which depicts that she is capable of lying and her testimony cannot by relied upon. Therefore, stating the absence of circumstantial evidence and lack of concrete explanations, the Supreme Court acquitted the accused. The said judgment led to an outcry and was highly criticized by the people of India and it was termed as a decision that undermined the status and suffering of women and sacrificed their basic human rights. Deeming it as a disgrace to the ideals of the Constitution of India, this decision was found against the society’s morality and culture.


There were a lot of issues with the judgment given by both the Sessions Court and the Supreme Court of India. Firstly, the Courts chose to ignore putting any emphasis on the intersection of power and caste involved in our society. A tribal girl, Mathura used to work as a laborer to earn her living while the accused were police officers and at a position of authority. It should not have come as a surprise to the judges to consider a passive submission on the part of the victim and her body being free from any kind of injuries in view of the power dynamics and the mentality of people when it comes to helpless, powerless and underprivileged people. Even after it was proved that Mathura was a minor, the courts did not give her any benefit of the doubt in regard to the horrible trauma that she had undergone and succumbed to assassinating the character of the victim. Deeming her as someone who is “habitual of sexual intercourse” and a teenage girl of promiscuous character, the court found it more believable that she would have accepted Ganpath’s invitation for sexual intercourse, who was a complete stranger to her. This above-mentioned statement depicts that the judge’s opinion of her was already coloured by the fact that Mathura had a lover and had been sexually active previously. The court had expected a minor girl to put up a defence against two fully-abled, one of them drunk, men while the doors were closed, and lights were off.


The next set of contentious observations were based on the medical examination report. The Court conveniently ignored the 20-hour gap between the incident and the medical examination, along with the presence of semen on both the victim and the accused’s clothes. Rather, the court readily accepted Ganpath’s contention of having nightly discharges and shifted the focus. Throughout the judgment, a double standard was shown by the judge, wherein the benefit of the doubt was given to the accused and the onus of proving the crime was only on the shoulders of the prosecution. There was a lack of empathy and a lack of understanding in regard to what constitutes consent in our legal system and mistook passive submission as consent or willingness. Thus, it can be concluded that Mathura’s socio-economic status and her having an “easy” character led to the court giving such an unjust judgment.


Today, the above-stated judgment would not be upheld in a court of law. With changing times, the laws that govern our society have changed too. In respect to rape laws, our judiciary, along with our society, is much more sensitized and aware of the rights of the victims. In legal terms, the definition of rape has become more inclusive and broader, along with the definition of sexual harassment. Now, to constitute the crime of rape, it isn’t necessary for penetration to happen. Additionally, specific comprehensive acts, such as The Protection of Children from Sexual Offences Act, 2012, have been introduced with the aim to protect the rights of minor children and punish any acts of sexual nature that are committed against them. Today, a victim of rape is given the benefit of the doubt along with the support of the law.


Comparative Analysis

United States:

In 1866, when the Memphis Riots occurred, Congress held hearings about the chaos and brutality that was observed during the riots. Black women testified before the Congress about being gang-raped by a white mob and were the first women to break the silence of rape in US.[1]


The 1900s have been witnessed and historically upheld as the years of revolt by the women to have their rights redefined and the issue of rape addressed. Even in India, a similar roadmap of history can be observed regarding the evolution of rape laws wherein judgment was given considering the sexual history of the victim and the same was used against her as a defence by the accused. After a long battle, the year 1975 saw a shift in this practice when it was realized that a decision cannot be delivered using a victim’s sexual history and doing so leads to obstruction of justice.


This radical change was brought in by the Congress which adopted rules 412-415 into the Federal Rules of Evidence with the aim to restrict the defendants from probing into the sexual behaviour, history, or reputation of the alleged victim. In Smelcher v State[2], the court held that past sexual history can only be used before the court based on the fact that it was that with the accused. The issue of custodial rape has been another major issue in the states for which the Prison Rape Elimination Act was introduced in 2003 and protection was granted to the inmates in the states.


United Kingdom:

The issue of rape was first addressed in 1887, in the case of R v Riley[3], wherein the court held that the sexual history of a person other than the person by whom the crime of rape has been committed should not be permitted as a defence. It was held that “it is obvious, too, that the result of admitting such evidence would be to deprive an unchaste woman of any protection against assaults of this nature”.[4] In the year 1975, on the issue of a rape trial, the personal history and character of rape victim were addressed, which then led to the introduction of The Sexual Offences (Amendment) Act, 1976. Further, in 1999 the Youth Justice and Criminal Evidence Act (“YJCEA”) was introduced. It established the prima facie position that, except with the leave of the court, no evidence may be adduced, and no evidence asked in cross-examination by or on behalf of the accused at trial about any sexual behaviour of the complainant. [5]


In the UK Criminal Law, the European Convention on Human Rights (ECHR) was incorporated through the Human Rights Act, 1998 (HRA) and a lot of debates and discussions happened in the parliament. Firstly, the past sexual evidence has been described in Section 41 of YJCEA 1999, wherein the Parliament attempted to protect complainant’s in proceedings involving sexual offences by severely restricting evidence or questions about any of their past sexual behaviour. The aim of this statutory provision was to reduce the emotional trauma a victim might face within a trial. This was necessary because if a victim fears the prospect of having their past sexual history evidence discussed through a trial, in front of their friends, family and the general public more widely, they might choose, even if they have a strong case, to not offer evidence. This statutory provision, therefore, exists to limit the potential for shamming a victim with their past sexual history.

Further, as explained by Justice McLachlin in the influential Canadian case R v Seaboyer[6]:


“These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar. As a result of the beliefs underpinning these ‘twin myths’ being increasingly challenged, attempts have been made across many jurisdictions to restrict the admissibility of sexual history evidence. Often termed ‘rape shield’ laws, such provisions seek to limit the introduction of what is commonly referred to as ‘sexual history evidence’, though this term does include sexual activity after an alleged rape as well as evidence relating to other forms of sexual behavior and character. However, despite legislation being introduced to restrict admission of these forms of evidence, debate has continued to rage over the uses to which it is put.”[7]

Moreover, in the case of R v Andre Barrington[8], the court was clear that R v A was ‘not authority for any wider reading of s. 41’ in cases of third-party sexual activity. But the court took a different view in the matter of R v Hamadi[9], (while on the particular facts, the court upheld the trial judge’s refusal to admit third-party evidence, this judicial comment fails to recognize that the legislative aims of s. 41 are far wider and include, as discussed above, the fair administration of justice by excluding irrelevant, prejudicial material that may adversely affect the truth-seeking function of the trial. Excluding irrelevant or prejudicial material is, therefore, entirely compatible) fair trial rights stating that the ‘wider importance’ of R v A lies in the ‘recognition’ that protecting complainants from ‘indignity and humiliating questions’ to which section 41 is directed.


Conclusion

Mathura Rape Case became a landmark judgment that led to the introduction of several legal reforms. Through this rape case, the existing loopholes in our rape laws were highlighted along with the need to protect the rights of the women. After the said judgment and the resultant large-scale social outcry, Sections 376 (A), (B), (C) and (D) of the Indian Penal Code, 1860. The said sections established the concept of custodial rape, making the offence a punishable crime. Furthermore, Section 114 (A) was added to the Indian Evidence Act, 1872 which led to a shift in the burden of proving the ingredients of rape from the prosecution to the defence. The said addition was an important step by the court towards protecting the rights of the victim and presuming the existence of certain facts which the court thinks are likely to have taken place.


With the development of the above-mentioned laws, it was now the court’s discretion to presume the absence of consent in cases where there was enough evidence that the accused stands in the position of power over the victim and the victim specifies that the sexual intercourse took place forcefully. Additionally, it meant that now the onus was upon the defendant to prove their innocence and rebut the claim put forth by the victim. Lastly, provisions were also made to hold in-camera trials in the court with the aim of protecting the victim from facing any more trauma by the hands of law and any disclosure of the victim’s identity were prohibited. There was a gross miscarriage of justice in the said case and the decision of the added to the many sufferings of the victim. The crime of rape has devastating psychological effects such as depression, PTSD, flashbacks and sleep disorders, along with the physical injury. It is the duty of the court to make women feel less vulnerable and take step towards the elimination of this barbaric crime. Even though stringent laws and penalties have been introduced since then, it is the courts to fill the gaps and ensure that women get their basic rights.

[1] A Brief History of the Anti-Rape Movement, Resource Sharing Project, http://www.resourcesharingproject.org/brief-history-anti-rape-movement, last seen on 15/08/2020. [2] Smelcher v. State, 520 So. 2d 229 (Ala. Crim. App.1987). [3] R v Riley, (1887) 18 QBD 481. [4]Clare McGlynn, Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence, The Sage Journal- The Journal of Criminal Law, https://journals.sagepub.com/doi/full/10.1177/0022018317728824, last seen on 15/08/2020.

[5] CHARACTER EVIDENCE IN RAPE TRIALS, Norton Rose Fulbright (South Africa) for the Bangladesh Legal Aid and Services Trust (BLAST), https://www.trust.org/contentAsset/raw-data/7c70a653-6c85-4734-981b-72a1de7db614/file, last seen on 15/08/2020. [6] R v Seaboyer, [1991] 2 S.C.R. 577. [7] R v Seaboyer, [1991] 2 S.C.R. 577. [8] R v Andre Barrington [2004] EWCA White. [9] R v Hamadi [2007] EWCA Crim 3048 para.